Exhibit 10.3


 


This Warrant has not been
registered under the Securities Act of 1933, as amended (the “Act”), or any
applicable state securities laws, and may not be sold or transferred unless
such sale or transfer is in accordance with the registration requirements of
the Act and applicable laws or the Company has received an opinion of counsel
reasonably satisfactory to it that an exemption from the registration
requirements of the Act and applicable laws is available with respect thereto.


 


DG
FASTCHANNEL, INC. 


COMMON
STOCK PURCHASE WARRANT


 


	
  Warrant
  No.  3

  	
   

  	
  350,973 Shares of Common Stock

  



 


1.     Issuance.  This Warrant is issued to Scott K. Ginsburg
by DG FastChannel, Inc. a Delaware corporation (hereinafter with its
successors called the “Company”), as a restatement in its entirety of that
Warrant originally issued by the Company’s predecessor, Starguide Digital
Networks, Inc., as previously amended.


 


2.     Purchase Price, Number of Shares.  At any time after the date hereof but before
the expiration hereof, the registered holder of this Warrant (the “Holder”),
shall be entitled upon surrender of this Warrant with the subscription form
annexed hereto duly executed, at the office of the Company, to purchase up to
350,973 shares of Common Stock of the Company, no par value per share (the “Common
Stock”), at an exercise price (the “Purchase Price”) equal to $10.00 per share.


 


3.     Payment of Purchase Price.  The Purchase Price may be paid (i) in
cash or by cashier’s check; (ii) by the surrender by the Holder to the Company
of any promissory notes or other obligations issued by the Company, with all
such notes and obligations so surrendered being credited against the Purchase
Price in an amount equal to the principal amount thereof plus accrued interest
to the date of surrender; (iii) through delivery by the Holder to the
Company of other securities issued by the Company, with such securities being
credited against the Purchase Price in an amount equal to the fair market value
thereof, as determined in good faith by the Board of Directors of the Company;
or (iv) by any combination of the foregoing.


 


4.     Partial Exercise.  This Warrant may be exercised in part, and
the Holder shall be entitled to receive a new warrant, which shall be dated as
of the date of this Warrant, covering the number of shares in respect of which
this Warrant shall not have been exercised.


 


5.     Net Issue Exercise.  Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Purchase Price for one share of Common Stock (at the date of calculation,
as set forth below), in lieu of exercising this Warrant for cash, the Holder
may elect to receive shares of Common Stock equal to the value (as determined
below) of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company, together with the properly
endorsed Warrant Certificate, substantially in the form as attached hereto, in
which event the Company shall issue to the Holder that number of shares of
Common Stock computed using the following formula:


 


WS = WCS (FMV-PP)


FMV


 


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WHERE:


 


WS      equals the number of Warrant Shares to be issued to the Holder;


 


WCS   equals the number of shares of
Common Stock purchasable under the Warrant or, if only a portion of the Warrant
is being exercised, the portion of the Warrant being canceled (at the date of
such calculation);


 


FMV    equals the Fair Market Value
(as defined below) of one share of Common Stock (at the date of such
calculation); and


 


PP        equals the per share
Purchase Price (as adjusted to the date of such calculation) of the Warrant.


 


As
used in this Section, the term “Fair Market Value” of each Share as of any date
shall be the closing bid price of the Company’s common stock as reported on the
Nasdaq Global Market (or other recognized trading market if the common stock is
not listed on Nasdaq) on the trading day immediately preceding the date of
exercise.


 


6.     Issuance Date.  The person(s) in whose name(s) any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.


 


7.     Expiration Date; Lock-Up.  This Warrant shall expire and be void at the
close of business at 5:00 pm. Central Time on December 31, 2010.


 


8.     Reserved Shares; Valid
Issuance.  The Company
covenants that it will at all times from and after the date hereof reserve and
keep available such number of its authorized shares of Common Stock, free from
all preemptive or similar rights therein, as will be sufficient to permit the
exercise of this Warrant in full.  The
Company further covenants that, assuming the receipt by the Company of the
consideration therefor, such shares as may be issued pursuant to the exercise
of this Warrant will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens, and charges with respect to the
issuance thereof.


 


9.     Dividends.  If after the date hereof the Company shall
subdivide the Common Stock, by split-up or otherwise, or combine the Common
Stock, or issue additional shares of Common Stock in payment of a stock
dividend on the Common Stock, the number of shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.


 


10.   Mergers and
Reclassifications.  If at any
time after the date hereof there shall be any reclassification, capital
reorganization, or change of the Common Stock (other than as a result of a
subdivision, combination, or stock dividend provided for in Section 8
hereof), or any consolidation of the Company with, or merger of the Company
into, another corporation or other business organization (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or change of the


 


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outstanding Common Stock),
or any sale or conveyance to another corporation or other business organization
of all or substantially all of the assets of the Company, then, as a condition
of such reclassification, reorganization, change, consolidation, merger, sale,
or conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Warrant in
full, the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, reorganization, change, consolidation,
merger, sale, or conveyance by a holder of the number of shares of Common Stock
which might have been purchased by the Holder immediately prior to such
reclassification, reorganization, change, consolidation, merger, sale, or
conveyance, and in any such case appropriate provisions shall be made with
respect to the rights and interest of the Holder to the end that the provisions
hereof (including, without limitation, provisions for the adjustment of the
Purchase Price and the number of shares issuable hereunder) shall thereafter be
applicable in relation to any shares of stock or other securities and property
thereafter deliverable upon exercise hereof.


 


11.   Fractional Shares;
Certificate of Adjustment.  In
no event shall any fractional share of Common Stock be issued upon any exercise
of this Warrant.  Whenever the Purchase
Price is adjusted, as herein provided, the Company shall promptly deliver to
the Holder a certificate of its Chief Financial Officer setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment.


 


12.   Notices of Certain Record
Dates.  In the event of (i) any
taking by the Company of a record of the holders of any class of securities for
the purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, or any right to subscribe for, purchase, or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right; (ii) any reclassification of the
capital stock of the Company, capital reorganization of the Company,
consolidation or merger involving the Company, or sale or conveyance of all or
substantially all of its assets; or (iii) any voluntary or involuntary
dissolution, liquidation, or winding-up of the Company; then and in each such
event the Company will mail or cause to be mailed to the Holder a notice
specifying (a) the date on which any such record is to be taken for the
purpose of such dividend, distribution, or right, and stating the amount and
character of such dividend, distribution, or right; or (b) the date on
which any such reclassification, reorganization, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined.  Such
notice shall be mailed at least 20 days prior to the date specified in such
notice on which any such action is to be taken.


 


13.   Piggyback Registration.  The provisions of this Section 13 shall
apply with respect to both this Warrant and shares issued upon exercise to this
Warrant (the “Registrable Securities”).


 


(a)     Notice of Piggyback
Registration.  Subject to
the exceptions and limitations contained herein, if, at any time or from
time-to-time, the Company shall Register any of its securities, either for its
own account or for the account of a security holder or holders (other than a
Registration relating solely to a transaction described in Rule 145 under
the Securities Act, a Registration on Form S-8, or an initial public
offering) the Company will: (i) promptly give the Holder written notice
thereof (which notice shall include a list of jurisdictions in which the
Company intends to attempt to qualify such securities under applicable Blue Sky
or other state


 


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securities laws), and (ii) include in
such Registration (and any related registration and/or qualification under the
applicable Blue Sky or other state securities laws), and in any Underwritten
Offering pursuant to such Registration, all Registrable Securities specified in
a written request or requests delivered to the Company by the Holder within
twenty (20) days after receipt of such written notice from the Company by the
Holder.


 


(b)     Piggyback Registration in
Underwritten Offerings.


 


(i)      Notice of Underwritten Offering.  If the Registration of which the Company
gives notice is for an Underwritten Offering commenced at the election of the
Company, the Company shall so advise the Holder as part of the written notice
given pursuant to Section 13(a).  In
such event, the right of the Holder to Registration shall be conditioned upon
there being an Underwritten Offering, and the inclusion of the Holder’s
Registrable Securities in such Registration and Underwritten Offering to the
extent provided in and in compliance with this Section 13.  If Holder proposes to distribute its
securities through such Underwritten Offering, Holder shall (together with the
Company and any other holders distributing securities through such
underwriting) enter into an underwriting agreement containing the terms and
conditions agreed to by the Company. 
Possession of this Warrant alone shall give the Holder no right to
participate in the selection of underwriters for an offering pursuant to this Section 13(b).


 


(ii)     Marketing Limitation in Piggyback
Registration.  In the
event the representative of the underwriters in any Underwritten Offering
advises the Company in writing that market factors (including, without
limitation, the aggregate number of shares of Common requested to be
Registered, the general condition of the market, and the status of the persons
proposing to sell securities in the Underwritten Offering) require a limitation
of the shares to be offered and sold in the Underwritten Offering, then the
number of shares to be excluded from the Underwritten Offering shall be
determined in the following order: (i) first, securities held by persons
who are not contractually entitled to be included in the Registration; and (ii) second,
securities (other than preferred stock of the Company or securities convertible
therefrom) that are contractually entitled to be included in the Registration,
including securities Registrable pursuant to this Section 13; and (iii) third,
securities represented by preferred stock of the Company, if any, or shares
convertible therefrom, that are entitled to be included in the
Registration.  Any partial reduction in
the number of shares or securities included in the Underwritten Offering
affecting any of the three (3) classes set forth in the immediately
preceding sentence shall be allocated among the persons in any such class pro
rata, as nearly as practicable, based on the number of Registrable Securities
held by each persons and included in the Registration as a percentage of the
aggregate Registrable Securities held by all persons and included in the
Registration.


 


(iii)    Withdrawal in Piggyback
Registration.  If the
Holder exercises piggyback registration rights pursuant to this Section 13
and shall disapprove of the proposed terms of any Underwritten Offering, he may
elect to withdraw therefrom by written notice to the Company and the
underwriters delivered at least five business days prior to the effective date
of the Registration Statement.  Any
Registrable Securities or other securities excluded or withdrawn from such
Underwritten Offering shall be withdrawn from such Registration.


 


(c)     Blue Sky in Piggyback
Registration.  In the
event of any Registration of Registrable Securities pursuant to this Section 13,
the Company will use its best efforts to register and/or qualify the securities
covered by the Registration Statement under the securities or Blue Sky laws


 


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of such jurisdiction as shall be reasonably
appropriate for the distribution of the Registrable Securities.


 


(d)     Right to Terminate
Registration.  The Company
shall have the right to terminate or withdraw any Registration initiated by it
that triggers piggyback registration rights pursuant to this Section 13
prior to the effectiveness of such Registration, whether or not the Holder has
elected to include securities in such registration.


 


14.     Warrant Register.  The Company will maintain a register
containing the names and addresses of the registered holders of warrants issued
by the Company.  The Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change.  Any notice or
written communication required or permitted to be given to the Holder may be
given by certified mail or delivered to the Holder at its address as shown on
the warrant register.


 


15.   Substitute Warrants.  If this Warrant is mutilated, lost, stolen,
or destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for and
upon surrender and cancellation of the mutilated Warrant; or (ii) in lieu
of any Warrant lost, stolen, or destroyed, upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, or destruction of such Warrant
(including a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction) and of indemnity reasonably satisfactory to the
Company.


 


16.   No Impairment.  The Company will not, by amendment of its
Certificate of Incorporation or through any reclassification, capital
reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder.


 


17.   Miscellaneous.  The provisions and terms of this Warrant (i) shall
be governed by and construed in accordance with the internal laws of the State
of Nevada; (ii) shall be binding upon the Company’s successors and assigns
and shall inure to the benefit of the Holder’s successors, legal
representatives, and permitted assigns; (iii) subject to the terms hereof,
may be amended, modified, or waived only with the written consent of the
Company and the Holder; (iv) shall, if any terms hereof are found
unenforceable by a legally empowered court or agency, be deemed modified to the
extent necessary to become enforceable; and (v) constitute the entire
agreement of the parties with respect to the transactions contemplated herein.


 


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IN WITNESS WHEREOF, the
Company has caused this Common Stock Purchase Warrant to be executed by its
duly authorized officer, under seal, as of the date above written.


 




	
   

  	
   

  	
  DG FASTCHANNEL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  






 


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FORM OF SUBSCRIPTION


 


	
  To:

  	
   

  	
  DF
  FASTCHANNEL, INC.

  	
  Date:

  	
   

  



 


The undersigned hereby
subscribes for
                              
shares of Common Stock covered by this Warrant. 
The certificates for such shares shall be issued in the name of the
undersigned or as otherwise indicated below:


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name
  for Registration

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Mailing
  Address

  
	
   

  	
   

  
	
   

  	
   

  



 


*              *              *


 


FORM OF
ASSIGNMENT


 


For value received, the undersigned hereby sells,
assigns and transfers unto
                                                                               
the Warrant attached hereto and does hereby irrevocably constitute and appoint                                                                                
its attorney to transfer the Warrant on the books of DG FastChannel, Inc.
with full power of substitution on the premises.


 


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
   

  






 


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